Stuart Chamberlain looks at a potentially tricky scenario in cases of unfair dismissal.

Employers should be consistent in their treatment and punishment of employees in disciplinary cases. Where an employee has been dismissed for misconduct and the employee subsequently brings a claim of unfair dismissal to the employment tribunal, the tribunal will expect that the employer has acted fairly and reasonably, to have followed the guidance in the Acas Code of Practice on disciplinary and grievance procedures and to have taken all the relevant factors into account before dismissing the employee.

So, consider this scenario: two employees are involved in actions of gross misconduct that merit dismissal. After an investigation into the events, the employer finds that the underlying facts are not similar and decides to dismiss one of the employees but to give the other a final written warning.

How safe is the employer from a claim of unfair dismissal? Is an employee’s dismissal for misconduct unfair if another employee involved in the same incident receives only a final warning?

Help from case law

In 1981 in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 the Employment Appeal Tribunal (EAT) provided guidance on the issue: a dismissal may be unfair where employees guilty of similar misconduct in “truly parallel” circumstances are treated differently.

In this case, here had been alleged differential treatment of an employee in relation to a similar offence on a different occasion. The EAT set out three possible ways where decisions made by an employer in truly parallel circumstances in relation to a different employee may be relevant.

  1. Employees may be led by an employer to believe that certain categories of conduct will be overlooked or will be more mercifully treated in the light of the way that other employees have been dealt with in the past.

  2. It may show that the dismissal in the instant case is not for the reason put forward, ie that the asserted reason for dismissal is not the real or genuine reason.

  3. Evidence as to decisions made by an employer in two truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.

The EAT emphasised that:

“It is only in the limited circumstances that we have indicated that the argument (ie the disparity argument) is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar to afford an adequate basis for the argument.”

The EAT was concerned that a tribunal might be led away from a proper consideration of the issues raised by the legislation (now s.98(4) of the Employment Rights Act 1996 (ERA)). The emphasis in that legislation is upon the particular circumstances of the individual employee’s case and the EAT believed that it would be “most regrettable” if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with issues when dismissal is being considered.

The case law re-visited

The issue of disparate treatment arose again in the case of MBNA Ltd v Jones [2015] UKEAT/0120/15.

The facts of the case

Mr Jones and Mr Battersby attended a work social event. They had been warned that normal standards of behaviour would apply and that any misconduct would be subject to the organisation’s disciplinary procedures.

The two employees had been drinking before and during the event and became involved in arguments, which lead to Mr Jones punching Mr Battersby in the face. Mr Battersby later sent several threatening text messages to Mr Jones.

As a result, both employees were subject to the firm’s disciplinary proceedings. Mr Jones was subsequently dismissed while Mr Battersby received a final written warning.

The EAT’s decision

The EAT overturned the employment judge’s decision that Mr Jones had been unfairly dismissed by reason of disparity with the sanction imposed on another employee (Mr Battersby), who received a final written warning. The employment judge had not applied the guidance in Hadjioannou v Coral Casinos Ltd (see above); if he had done so, he would have been bound to recognise key differences between the two cases. The circumstances of Mr Jones and Mr Battersby were not truly parallel. Jones had punched Battersby in the face at the work event. Battersby had sent text messages after the event threatening violence. While these were reprehensible, Battersby did not carry out his threat in the workplace or anywhere else. Physical violence during the work event and threats of violence outside work were not sufficiently similar to be truly parallel.

The employment judge’s reasoning on the question of disparity did not properly apply s.98(4) of the Employment Rights Act 1996. He should have looked at whether the decision to dismiss for gross misconduct was reasonable and then whether it fell within the range of reasonable responses of a reasonable employer in those circumstances. If it was reasonable to dismiss Jones under the requirements of the legislation, then the fact that MBNA’s treatment of Battersby was more lenient was “irrelevant”.

In this case, therefore, and applying the EAT guidance in 1981, while both employees were guilty of gross misconduct for their part in the same incident, this alone did not render their behaviour “truly parallel” so as to make Jones’s dismissal unfair.

The EAT also pointed out that provocation may be a mitigating factor to be considered by the employer but cannot amount to a defence to misconduct.

Employers’ checklist

The MBNA Ltd v Jones case serves as a reminder that, should two or more employees be accused of the same or similar misconduct, an inconsistent disciplinary sanction will not, of itself, render the dismissal unfair unless the circumstances of the employees were truly similar (or “parallel”, as the Court of Appeal described in Hadjiouannu).

In circumstances where more than one employee is involved in allegations of misconduct, the employer should consider the following points.

  • Set out in the organisation’s disciplinary rules the type of behaviour that can constitute misconduct and emphasise that disciplinary action will be taken in these circumstances, including the sanctions that will be imposed.

  • Remember that provocation can be a mitigating factor, but not a total defence to misconduct.

  • Be consistent in the application of sanctions.

  • Consider each case carefully and separately and assess whether or not the circumstances are truly parallel.

  • If they are, similar sanctions should be applied against each employee.

  • If they are not, then different treatment can be considered but be ready to explain the reasoning behind any disparity of treatment. (For example, in Enterprise Liverpool plc v Bauress and Ealey [2006] EAT/0145/05 differences in treatment were accepted: two joiners, recently out of their apprenticeships, who had lied and attempted to cover up their actions, were dismissed summarily whereas an older employee, of 30 years’ good service who had admitted his guilt, had earlier been given a final written warning. The EAT found no similarity in the cases.)

  • If a decision to dismiss is made, ensure that it is a fair dismissal — ie that the substantive treatment of the employee was fair, the procedures, including an investigation, were reasonable and that the dismissal was among the band of reasonable responses.

Conclusions

The key factor for an employment tribunal will be whether it was reasonable for the employer to dismiss the employee; as already emphasised, the fact that the employer was lenient to another employee will be irrelevant. Employers can be further reassured that it will be rare for the circumstances in such cases of misconduct to be truly parallel.

Last reviewed 28 January 2016